Vikram Singh Tomar vs State Of U.P. And 3 Others
2023 Latest Caselaw 36135 ALL

Allahabad High Court

Vikram Singh Tomar vs State Of U.P. And 3 Others on 21 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC:242418
 
Court No. - 36
 

 
Case :- WRIT - A No. - 9035 of 2023
 

 
Petitioner :- Vikram Singh Tomar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C
 
Hon'ble Manjive Shukla,J.
 

1.   Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Himanshu Singh, learned counsel appearing for the petitioner and learned Standing Counsel appearing for the respondents.

2. Petitioner through this writ petition has assailed the order dated 13.4.2023 passed by the Additional Director of Education (Basic), U.P. Prayagraj, whereby his representation for grant of promotion on the post of Administrative Officer with effect from the date of promotion of his juniors, has been rejected on the ground that on the date when his juniors were given promotion on the posts of Administrative Officer, disciplinary proceedings were pending against him and further District Basic Education Officer, Firozabad vide his letter dated 11.11.2022 has informed that petitioner is full of spontaneity and does not care to follow the rules and regulations.

3. Facts of the case, in brief, are that petitioner was initially appointed on the post of Junior Clerk and was posted at Government Normal School Goverdhan, District Mathura vide appointment order dated 24.3.1988. Petitioner was granted promotion on the post of Senior Clerk vide order dated 19.2.1994 and was posted in the office of District Inspector of Schools, Etah. Later on, vide order dated 26.4.2013 passed by the Additional Director of Education (Basic), U.P. Prayagraj, post of Senior Clerk was re-designated as Head Assistant.

4. Petitioner in the capacity of Head Assistant was transferred at different places and lastly, he was posted as Head Assistant in the office of District Inspector of Schools, Agra.

5. The terms and conditions of the service on the post of Head Assistant are governed by the Uttar Pradesh Subordinate Education Clerical Cadre Service Rules, 1985 (hereinafter referred to as 'the Rules of 1985'). Under the Rules of 1985, next promotional post of the Head Assistant is Administrative Officer and 100% posts of Administrative Officer are filled in by way of promotion of Head Assistants on the criteria of seniority subject to rejection of unfit. Seniority list of the incumbents working on the posts of Senior Clerk (re-designated as Head Assistant) was published under the signatures of the Additional Director of Education (Basic), U.P. Prayagraj on 24.7.2007. The name of petitioner finds place at serial no. 361 in the aforesaid seniority list of Head Assistants.

6. Services of the petitioner while he was working on the post of Head Assistant in the office of District Basic Education Officer, Agra, were placed under suspension vide order dated 12.2.2021 passed by the Additional Director of Education (Basic), U.P., Prayagraj. A charge sheet was issued to the petitioner and thereafter, vide order dated 6.8.2021 passed by the Additional Director of Education (Basic), U.P., Prayagraj, petitioner was reinstated in service with full salary with a rider that disciplinary proceedings initiated against him will continue. The Additional Director of Education (Basic) U.P. Prayagraj passed another order on 9.8.2021 whereby place of posting of the petitioner was changed and he was posted in the office of District Basic Education Officer, Firozabad.

7. The aforesaid disciplinary proceedings initiated against the petitioner were concluded and the Additional Director of Education (Basic), U.P., Prayagraj passed an order on 10.6.2022, whereby disciplinary proceedings against the petitioner were dropped on the ground that the charges levelled against the petitioner were not found proved.

8. The disciplinary proceedings against the petitioner remained pending from 12.2.2021 till 10.6.2022 and during the aforesaid period exercise of promotion from the post of Head Assistant to the post of Administrative Officer was carried out and vide order dated 24.11.2021, on the basis of recommendations of the selection committee, twenty four Head Assistants were granted promotion on the posts of Administrative Officer. Petitioner in his writ petition has categorically stated that the selection committee constituted for the aforesaid promotions did not consider his case for the reason that disciplinary proceedings were pending against him.

9. The Government of U.P. has issued a Government Order on 28.5.1997, wherein it has been provided that if disciplinary proceedings against a government servant are pending, then his case for promotion to higher post shall be considered by the selection committee along with other government servants and recommendations of the selection committee shall be kept in sealed cover. In the Government Order dated 28.5.1997, it has further been provided that on exoneration of the government servant in the disciplinary proceedings, sealed cover of the concerned government servant shall be opened and if the selection committee has recommended for his promotion on the higher post, then he will be granted promotion with effect from the date of promotion of his immediate junior. Petitioner in his writ petition has categorically stated that the procedure of putting recommendations in the sealed cover was not adopted in his case and his case was not at all considered by the selection committee for the reason that disciplinary proceedings were pending against him though as per the provisions of the aforesaid Government Order, the selection committee was under obligation to consider the case of the petitioner for promotion on the post of Head Assistant and to adopt sealed cover procedure. It has been further stated in the writ petition that case of the petitioner was not considered by the selection committee and various Head Assistants, who are juniors to the petitioner, were promoted to the posts of Administrative Officer vide promotion order dated 24.11.2021 issued by the Additional Director of Education (Basic), U.P., Prayagraj.

10. Since case of the petitioner for promotion on the post of Administrative Officer was not considered by the selection committee and his juniors were given promotion, he filed Writ-A No.14480 of 2022, which was finally disposed of by this court vide order dated 20.9.2022, whereby direction was given to Additional Director of Education (Basic), U.P., Prayagraj to consider and decide the petitioner's representation dated 16.6.2022 and to pass appropriate order strictly in accordance with law.

11. Pursuant to the aforesaid order dated 20.9.2022 passed by this court in Writ- A No.14480 of 2022, the Additional Director of Education (Basic), U.P., Prayagraj has passed an order on 13.4.2023, whereby representation of the petitioner for his promotion on the post of Administrative Officer with effect from the date of promotion of his immediate junior has been rejected on the ground that on the date of promotion of juniors, disciplinary proceedings were pending against him and further District Basic Education Officer, Firozabad vide his letter dated 11.11.2022 has informed that petitioner is full of spontaneity and does not care to follow the rules and regulations.

12. Learned Senior Advocate appearing for the petitioner has submitted that even if disciplinary proceedings were pending against the petitioner, in view of provisions of the Government Order dated 28.5.1997, it was obligatory on the selection committee to consider his case for promotion on the post of Administrative Officer along with other Head Assistants but in absolutely illegal manner the selection committee did not consider his case for promotion. It has further been submitted that the Government Order dated 28.5.1997, in unequivocal terms, provides that if on the date of meeting of selection committee, disciplinary proceedings are pending against any government servant and he is in the list of eligible candidates, his case will be considered by the selection committee and recommendations regarding the said government servant shall be kept in sealed cover and after conclusion of the disciplinary proceedings, the said sealed cover shall be opened and if the selection committee has recommended for his promotion, then the said government servant shall be given promotion from the date of promotion of his immediate junior, whereas in the case of petitioner the said procedure has not been adopted and therefore, the entire exercise carried out by the respondents is in violation of the provisions of the Government Order dated 28.5.1997.

13. Learned Senior Advocate appearing for the petitioner has vehemently argued that it is well settled proposition of law that if a government servant could not be given promotion due to pending disciplinary proceedings and later on he is exonerated from the charges and disciplinary proceedings are dropped, he will be given promotion with effect from the date his immediate junior was promoted on the higher post, whereas in the present case it is admitted case of the respondents that juniors to the petitioner have been promoted and he was not given promotion only for the reason that disciplinary proceedings were pending against him but now once he has been exonerated from the charges and disciplinary proceedings pending against him have been concluded, he is entitled for his promotion on the post of Administrative Officer with effect from the date of promotion of his immediate junior.

14. Learned Senior Advocate appearing for the petitioner has empathetically argued that the order dated 13.4.2023 has been passed by the Additional Director of Education (Basic), U.P., Prayagraj in gross violation of the provisions of the Government Order dated 28.5.1997 and therefore, the said order is unsustainable in the eyes of law.

15. Learned Senior Advocate appearing for the petitioner has contended that representation of the petitioner for his promotion on the post of Administrative Officer with effect from the date of promotion of his immediate junior has been rejected by the Additional Director of Education (Basic), U.P., Prayagraj on two grounds, firstly, that on the date of promotion of juniors, disciplinary proceedings were pending against him and secondly, the District Basic Education Officer, Firozabad has submitted some adverse report vide letter dated 11.11.2022 regarding working of the petitioner. The first ground taken by the Additional Director of Education (Basic), U.P. Prayagraj in the impugned order dated 13.4.2023 cannot sustain in view of the provisions of the Government Order dated 28.5.1997 and the second ground is also not sustainable as District Basic Education Officer, Firozabad has given his opinion vide letter dated 11.11.2022 whereas promotions were made on 24.11.2021. Learned Senior Advocate appearing for the petitioner has argued that the observations made by the District Basic Education Officer, Firozabad in his letter dated 11.11.2022 are totally uncalled for and the District Basic Education Officer, Firozabad does not have any jurisdiction to make such comments as he is not the appointing authority of the post of the petitioner. Learned Senior Advocate has also argued that even otherwise observations made by the District Basic Education Officer, Firozabad in his letter dated 11.11.2022 are irrelevant for the purpose of promotion of the petitioner on the post of Administrative Officer as his juniors were promoted on the posts of Administrative Officer on 24.11.2021 i.e. much prior to the letter dated 11.11.2022.

16. Learned Senior Advocate appearing for the petitioner has concluded his arguments and has submitted that the order dated 13.4.2023 passed by the Additional Director of Education (Basic), U.P. Prayagraj is unsustainable in the eyes of law and is liable to be quashed by this court with a further direction to the respondents to promote the petitioner on the post of Administrative Officer with effect from the date his immediate junior was given promotion.

17. Per contra, learned Standing Counsel appearing the respondents has argued that petitioner is not entitled for promotion on the post of Administrative Officer with effect from 24.11.2021 i.e. the date his juniors were promoted on the post of Administrative Officer as on the said date disciplinary proceedings were pending against him. Learned Standing Counsel appearing for the respondents has further argued that District Basic Education Officer, Firozabad vide his letter dated 11.11.2022 has submitted a report wherein it has been mentioned that petitioner is full of spontaneity and he does not care to follow the rules and regulations and therefore, petitioner cannot be granted promotion on the post of Administrative Officer with effect from 24.11.2021.

18. Learned Standing Counsel appearing for the respondents has concluded his arguments by submitting that there is neither any illegality nor infirmity in the order dated 13.4.2023 which is impugned in the present writ petition and therefore, this writ petition is liable to be dismissed by this court.

19. I have considered the submissions advanced by the learned counsels appearing for the parties and have perused the record.

20. I find that petitioner while working on the post of Head Assistant in the office of District Inspector of Schools, Agra was put to disciplinary proceedings vide order dated 12.2.2021 and the said disciplinary proceedings were concluded vide order dated 10.6.2022 passed by the Additional Director of Education (Basic), U.P., Prayagraj, whereby disciplinary proceedings against the petitioner were dropped for the reason that charges levelled against him were not found proved. I further find that during pendency of the aforesaid disciplinary proceedings, selection committee considered the cases of promotion of Head Assistants to the posts of Administrative Officer but case of the petitioner was not considered and on the basis of recommendations made by the selection committee, his juniors were promoted on the posts of Administrative Officer vide order dated 24.11.2021.

21. The Government of U.P. in compliance of the judgment dated 27.8.1991 rendered by the Hon'ble Supreme Court in Union of India and others vs. K.V. Jankiraman and others, reported in AIR 1991 SC 2010 has issued a Government Order dated 28.5.1997, wherein it has been provided that selection committee shall consider the cases of promotion of all the government servants who are eligible for promotion under the relevant service rules and their names find place in the list of eligible candidates. It has further been provided in the said Government Order that if disciplinary proceedings are pending against any government servant, then the recommendations of the selection committee made in respect of his promotion shall be kept in sealed cover and the said sealed cover shall be opened after conclusion of the disciplinary proceedings and if the concerned government servant is exonerated from the charges, he will be given notional promotion with effect from the date of promotion to his immediate junior. The relevant provisions of the Government Order dated 28.5.1997 are extracted as under:-

"उत्तर प्रदेश शासन

कर्मिक अनुभाग-1

संख्या-13/21/89-का-1-1997

लखनऊ, दिनांक 28 मई, 1997

कार्यालय-ज्ञाप

विषयः- राज्याधीन सरकारी सेवा में सेवारत कर्मिको की प्रोन्नतियों के लिये होने वाले चुनावों में बन्द लिफाफे की कार्यवाही आदि की प्रक्रिया का निर्धारण।

उपरोक्त विषय पर शासन की वर्तमान नीति कार्यालय-ज्ञाप संख्या-15/85/1983-कर्मिक-1 दिनांक 30 नवम्बर, 1983 में निहित है। "भारत संघ इत्यादि बनाम जानकी रमन इत्यादि, (ए०आई०आर० 1991 एस०सी०2010)"नामक वाद में मा० उच्चतम न्यायालय के निर्णय दिनांक 27 अगस्त, 1991 तथा स्थायीकरण के सम्बन्ध में वर्तमान में लागू नीति आदि के प्रकाश में सम्यक् रूप से विचारोपरान्त उपरोक्त कार्यलय-ज्ञाप दिनांक 30 नवम्बर, 1983 को निरस्त करते हुए शासन द्वारा उक्त विषय पर अब निम्नलिखित प्रक्रिया निर्धारित की गयी हैः-

(1) पात्रता सूची के प्रत्येक कार्मिक के सम्बन्ध में चयन समिति द्वारा विचार किया जायः प्रोन्नति हेतु गठित चयन समिति द्वारा उन सभी कार्मिको की प्रोन्नति के सम्बन्ध में विचार किया जायेगा, जो संगत सेवा नियमों व पात्रता विषयक नियमों के तहत नियमानुसार पात्रता सूची में आते है। भले ही उनमें से किसी कार्मिक के विरूद्ध किसी प्रकार की जांच (प्रकीर्ण-जांच, विभागीय प्रारम्भिक जांच, सतर्कता जांच, विभागीय औपचारिक-जांच, प्रशासनाधिकरण की जांच) या अभियोजन की कार्यवाही विचाराधीन अथवा लम्बित हो अथवा वह निलम्बित चल रहा हो, और चयन समिति द्वारा ऐसे समस्त लम्बित/विचाराधीन मामलों को छोडते हुए अन्य समस्त सेवाभिलेखों के आधार पर प्रोन्नति हेतु कार्मिक की उपयुक्तता पर विचार किया जायेगा।

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(4) मुहरबन्द लिफाफे से सम्बन्धित मामले हेतु स्थान सुरक्षित रखना - यदि किसी कार्मिक के विषय में चयन समिति की संस्तुति को मुहरबन्द लिफाफे में रखा गया हो तो उसके लिए एक पद सुरक्षित रखा जायेगा ताकि उसके निर्दोष पाये जाने पर लिफाफे में रखी संस्तुति के अनुसार अथवा यथा-स्थिति अग्रलिखित नीति के अनुसार मुहरबन्द लिफाफे में रखी संस्तुति पर पुनर्विचार के आधार पर चयन समिति द्वारा की गयी पुनर्सस्तुति के अनुसार ( यदि प्रोन्नति किये जाने की संस्तुति या पुनर्सस्तुति की गई हो) उक्त सुरक्षित पद के विरूद्ध उसे प्रोन्नत किया जा सके।

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(7) मुहरबन्द लिफाफे के निस्तारण की प्रक्रिया- जब सम्बन्धित कार्मिक निलम्बित न हो और उसके विरूद्ध चल रही अनुशासमिक विभागीय कार्यवाही, प्रशासनाधिकरण या यथास्थिति अभियोजन की समस्त कार्यवाहियों के अन्तिम परिणाम सामने आ जायें अर्थात उसके विरूद्ध कोई ऐसा मामला न हो जो ऊपर खण्ड (2) के उपखण्ड (क) (ख) (ग) की श्रेणी में आता है तो निम्नलिखित प्रक्रिया अपनाते हुए मुहरबन्द लिफाफे का निस्तारण किया जायेगा

(क) पूर्णतः निर्दोष पाये जाने की दशा में- आरोपित कार्मिक, जिसके विषय में चयन समिति की संस्तुति मुहरबन्द लिफाफे में रखी गयी है, को यदि पूर्ण रूप से दोष मुक्त पाया जाता है को नियुक्ति प्राधिकारी (या यथास्थिति चयन कराने वाले विभाग के सचिव या प्रमुख सचिव जिनकी अभिरक्षा में चयन समिति का कार्यवृत रखा जाता है) द्वारा लिफाफे को खोला जायेगा और तदोपरान्त इसमें रखी संस्तुति के क्रियान्वयन की कार्यवाही की जायेगी। ऐसे मामले में यदि लिफाफे में रखी संस्तुति के अनुसार उसे प्रोन्नति हेतु संस्तुत किया गया हो तो उसे संदर्भित चयन के आधार पर प्रोन्नत किये गये उसके कनिष्ठ की प्रोन्नति की तिथि से नोशनल प्रोन्नत माना जायेगा और तदनुसार आदेश निर्गत किये जायेंगे।

(ख) यदि न्यायालय द्वारा अभियोजन के मामले में किसी आरोपित कार्मिक को गुणावगुण के आधार पर दोषमुक्त किया गया हो और सक्षम प्राधिकारी द्वारा उस निर्णय के विरूद्ध न तो अपील की जाती है और न विभागीय कार्यवाही प्रस्तावित है तो ऊपर उपखण्ड (क) के अनुसार उसी प्रकार कार्यवाही की जायेगी जो न्यायालय द्वारा गुणावगुण के आधार पर दोष मुक्त करार दिये जाने की दशा में की जाती ।

(ग) अंशतः या पूर्णतः दोषी पाये जाने की दशा में- यदि आरोपित कार्मिक के विरूद्ध मामलो की समाप्ति पर यह पाया जाता है कि उसके विरूद्ध लगाये गये आरोप आंशिक या पूर्णरूप से सिद्ध हुये है तो उसी स्तर की चयन समिति की बैठक आहूत की जायेगी जिस स्तर को चयन समिति द्वारा संदर्भगत चयन सम्पन्न किया गया था। यह चयन समिति उसके विरूद्ध चल रहे मामलों में प्राप्त अन्तिम परिणामों सहित समस्त अभिलेखों के प्रकाश में मुहरबन्द लिफाफे में रखी संस्तुति पर पुनर्विचार करेगी। यदि किसी कार्मिक के सम्बन्ध में एक से अधिक लिफाफे उपलब्ध हों तो उपलब्ध लिफाफों को तब तक क्रमवार एक-एक करके खोलते हुए उन पर उपरोक्तानुसार चयन समिति द्वारा पुनर्विचार किया जायेगा जब तक कि यथास्थिति उसे चयन समिति द्वारा किसी चयन के संदर्भ में प्रोन्नति के लिये संस्तुत न किया जाय अथवा समस्त उपलब्ध लिफाफे खोल कर उन पर पुनर्विचार न कर लिया जाये। यदि पुनर्विचार के परिणामस्वरूप उसे किसी पूर्व चयन के संदर्भ में प्रोन्नति के लिए संस्तुत किया जाता है तो उसे चयन के आधार पर उसके कनिष्ठ की प्रोन्नति की तिथि से प्रोन्नत समझा जायेगा जिस तिथि की चयन समिति की संस्तुति पर पुनर्विचारोपरान्त उसकी प्रोन्नति का निर्णय लिया गया है व इस विषय में स्पष्ट आदेश जारी किये जायेंगे।"

22. The aforesaid Government Order dated 28.5.1997 makes it mandatory for the selection committee to consider the cases of all the government servants for their promotion, whose names find place in the list of eligible candidates and if against any government servant disciplinary proceedings are pending, then the recommendations of the selection committee in respect of his promotion shall be kept in sealed cover. The aforesaid Government Order dated 28.5.1997 further provides that on conclusion of the disciplinary proceedings if the concerned government servant is exonerated from the charges, he will be given notional promotion on the higher post with effect from the date his immediate junior has been given promotion. In the present matter, there is no dispute that promotions on the posts of Administrative Officer are to be made from amongst Head Assistants on the criteria of seniority subject to rejection of unfit, as contemplated under the Rules of 1985. It is also not disputed that petitioner as per provisions of the Rules of 1985 was eligible for promotion on the post of Administrative Officer. Once there is no dispute in respect of petitioner being eligible for promotion on the post of Administrative Officer, his case for promotion ought to have been considered by the selection committee along with the cases of his juniors, whereas selection committee did not consider his case for promotion on the post of Administrative Officer and made recommendations in respect of promotions of his juniors and thereby juniors to the petitioner were promoted on the posts of Administrative Officer vide order dated 24.11.2021. The case of petitioner was not considered by the selection committee only for the sole reason that on the date of meeting of selection committee disciplinary proceedings were pending against him, whereas the Government Order dated 28.5.1997 mandates that even if disciplinary proceedings are pending against a government servant, his case for promotion shall be considered and recommendations of the selection committee shall be kept in the sealed cover.

23. This court finds that selection committee while not considering case of the petitioner for his promotion on the post of Administrative Officer and making recommendations for promotion of his juniors, has acted in gross violation of the provisions made in the Government Order dated 28.5.1997. The Government Order dated 28.5.1997 categorically provides that if a government servant was otherwise eligible for promotion but he could not be promoted on the ground of pending disciplinary proceedings and subsequently on conclusion of disciplinary proceedings he is exonerated from the charges, he will be given notional promotion with effect from the date of promotion of his immediate junior, therefore, once disciplinary proceedings pending against the petitioner have been concluded and he has been exonerated from all the charges, there is no reason for the respondents not to grant him promotion on the post of Administrative Officer with effect from the date of promotion of his immediate junior. This court further finds that finding recorded by the Additional Director of Education (Basic), U.P., Prayagraj in the impugned order dated 13.4.2023 that since on the date of promotion of juniors disciplinary proceedings were pending against the petitioner, therefore even if he has been subsequently exonerated from the charges, he is not entitled for promotion with effect from the date of promotion of his juniors, is contrary to the provisions of the Government Order dated 28.5.1997, as such, the impugned order dated 13.4.2023 cannot sustain in the eyes of law.

24. So far as the second ground of rejection of representation mentioned in the impugned order dated 13.4.2023 that the District Basic Education Officer, Firozabad vide his letter dated 11.11.2022 has submitted a report in which it has been stated that petitioner is full of spontaneity and does not care to follow the rules and regulations, is concerned, this court finds that the aforesaid observations have been made subsequent to the date of promotion of the juniors i.e. subsequent to 24.11.2021, as such they are not relevant for the purposes of the claim of the petitioner for his promotion on the post of Administrative Officer with effect from the date of promotion of his immediate junior and further District Basic Education Officer, Firozabad under the relevant service rules is not the appointing authority of the post of the petitioner, therefore the observations made by him in his report dated 11.11.2022 cannot be taken as final unless they are accepted and approved by the appointing authority by passing some final order.

25. In view of the aforesaid reasons, this court finds that the order dated 13.4.2023 passed by the Additional Director of Education (Basic), U.P., Prayagraj is liable to be quashed.

26. Accordingly, this writ petition is allowed, order dated 13.4.2023 passed by the Additional Director of Education (Basic), U.P., Prayagraj is quashed. Respondent No.3 is directed to consider the case of petitioner for grant of notional promotion on the post of Administrative Officer with effect from the date of promotion of his juniors i.e. with effect from 24.11.2021 and to pass order as per the provisions of the Government Order dated 28.5.1997 within one month from the date of service of certified copy of this order.

Order Date :- 21.12.2023

Salim